Citation Nr: 1440584
Decision Date: 09/11/14 Archive Date: 09/18/14
DOCKET NO. 08-36 922 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky
THE ISSUE
Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
M. Katz, Counsel
INTRODUCTION
The Veteran served on active duty from May 1966 to March 1968.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2010. A transcript of that hearing is associated with the claims file.
FINDINGS OF FACT
1. A December 2003 rating decision denied service connection for PTSD. Although the Veteran filed a timely notice of disagreement with regard to that decision, he did not perfect his appeal.
2. Evidence received since the December 2003 rating decision is new, but does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD.
CONCLUSION OF LAW
Evidence received to reopen the claim of entitlement to service connection for PTSD is not new and material, and therefore, the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify claimants of information and evidence necessary to substantiate the claim and redefined its duty to assist her in obtaining such evidence. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2013). With regard to the Veteran's claim to reopen the issue of entitlement to service connection for PTSD, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. A December 2007 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The December 2007 letter also notified the Veteran of the regulations pertinent to claim to reopen based on the submission of new and material evidence, and of the specific evidence required to reopen his claim for service connection for PTSD. See Kent v. Nicholson, 20 Vet. App 1 (2006).
The Veteran's service treatment records, VA medical treatment records, and identified private medical treatment records have been obtained. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). VA examinations were conducted in June 2009 and May 2011; the record does not reflect that these examinations are inadequate for rating purposes, as they provide diagnoses based upon mental status examinations and the evidence in the claims file. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).
In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) and Decision Review Officer (DRO) who conduct hearings fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Although the VLJ and DRO in this case did not specifically identify to the Veteran, prior to his testimony, the bases of the denial of the issue on appeal and specifically identify the intended focus of the testimony, both the Veteran and his representative demonstrated actual knowledge of what was needed, and provided the appropriate testimony to further clarify all lay bases of evidence. That notwithstanding, the representative, the VLJ, and the DRO asked questions to ascertain the Veteran's symptoms and sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the Board or DRO hearings. By contrast, the hearings focused on the elements necessary to substantiate the Veteran's claim; through his testimony, he demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As discussed below, the basis of the denial of the Veteran's claim to reopen the issue of entitlement to service connection for PTSD is predicated on professional medical opinions; as the Veteran is not a medical professional, testimony on his behalf or that of his representative would not have resulted in a different outcome. Accordingly, the Board finds that the VLJ and the DRO substantially complied with the duties set forth in 38 C.F.R. 3.103(c)(2); any error in notice or assistance by the VLJ at the Board or DRO hearing constitutes harmless error.
There is no indication in the record that any additional evidence, relevant to the issue adjudicated in this decision, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).
Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
The Veteran contends that he has submitted new and material evidence sufficient to reopen his claim for entitlement to service connection for PTSD.
Pertinent procedural regulations provide that nothing in 38 U.S.C.A. § 5103A shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. See 38 U.S.C.A. § 5103A(f) (West 2002). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996).
New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2013).
In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court recently held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010).
The RO denied service connection for PTSD in December 2003, and notified the Veteran of the decision that same month. The Veteran filed a notice of disagreement to the rating decision in February 2004, and a statement of the case was issued in December 2004. However, the Veteran did not timely perfect his appeal, and did not submit documentation within the one-year appeal period that would constitute new and material evidence. Thus, the December 2003 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013).
The December 2003 rating decision denied the Veteran's claim for entitlement to service connection for PTSD on the basis that the evidence did not show a confirmed diagnosis of PTSD. Thus, in order for the Veteran's claim to be reopened, evidence must have been added to the record since the December 2003 rating decision relating to this basis.
In September 2006, the Veteran filed the current claim to reopen the issue of entitlement to service connection for PTSD. In a March 2008 rating decision, the RO declined to reopen the Veteran's claim.
Although the RO determined that new and material evidence was not presented to reopen the claim of entitlement to service connection for PTSD, the Board does not have jurisdiction to consider a previously adjudicated claim unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 U.S.C.A. §§ 5108, 7104(b). Thus, the Board must first decide whether evidence has been received that is both new and material to reopen the claim. McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted). Consequently, the Board will adjudicate the question of whether new and material evidence has been received, furnishing a complete explanation as to its reasons and bases for such a decision.
Since the December 2003 rating decision, evidence added to the claims file includes VA treatment records from 2000 through 2014, VA examinations dated in June 2009 and May 2011, lay statements, and testimony before the DRO in February 2009 and the Board in July 2010. Review of the pertinent evidence received since the December 2003 rating decision does not demonstrate a confirmed diagnosis of PTSD. In that regard, the VA treatment records show diagnoses of, and treatment for, anxiety disorder. While the U.S. Court of Appeals for Veterans Claims (Court) has held that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim, the Veteran's anxiety disorder is already service-connected. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the treatment records showing diagnoses of anxiety disorder are not material to the Veteran's claim for entitlement to service connection for PTSD. While two VA treatment record note a possible diagnosis of PTSD, there is no confirmed diagnosis shown in the records. Moreover, the June 2009 VA examiner concluded that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. Similarly, the May 2011 VA examiner did not diagnose PTSD.
Although the evidence received since the December 2003 rating decision is new, in the sense that it had not previously been considered by VA, the evidence is not relevant to the Veteran's claim for service connection for PTSD because it does not show a confirmed diagnosis of PTSD; in fact, the evidence shows that the Veteran's symptoms were considered, but found to be insufficient to meet the criteria for a diagnosis of PTSD under the DSM-IV. Thus, the evidence does not relate to an unestablished fact necessary to establish the Veteran's claim. 38 C.F.R. § 3.156(a).
The claim for service connection for PTSD was denied in December 2003 because the evidence of record did not demonstrate that the Veteran had a current confirmed diagnosis of PTSD. As the newly submitted evidence does not show that the Veteran currently has a confirmed diagnosis of PTSD, the evidence does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the claim for entitlement to service connection for PTSD is not reopened.
As new and material evidence to reopen the finally disallowed claim of entitlement to service connection for PTSD has not been submitted, the benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993).
ORDER
New and material evidence not having been submitted, the Veteran's appeal to reopen the claim for entitlement to service connection for PTSD is not reopened and the appeal is denied.
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U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs